Does this brief help at all in SCOTUS’s decision making?
https://www.law.com/newyorklawjourn...overturn-nyc-gun-law/?slreturn=20190417144910
https://www.law.com/newyorklawjourn...overturn-nyc-gun-law/?slreturn=20190417144910
Trump Administration Files Brief Urging SCOTUS to Overturn NYC Gun Law
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adcoch1
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I think Trump is trying to help us, but I am with BigBore44 on this one...
Ivy Mike
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I sure hope this doesn't go Trump's way. States should have the right to regulate guns within their own borders, just like the Founders intended.
If he, as a resident of New York, wanted to file such a brief, that's one thing. But the president asking a federal court to overturn a state law just seems wrong. Hopefully Roberts remembers that its not his job to legislate from the bench. He seems to have tempered his early activist streak as of late but with guys like Kavanaugh ready and willing to continue his judicial activism, I don't hold high hopes for this court.
More bigger government is coming I'm afraid.
If he, as a resident of New York, wanted to file such a brief, that's one thing. But the president asking a federal court to overturn a state law just seems wrong. Hopefully Roberts remembers that its not his job to legislate from the bench. He seems to have tempered his early activist streak as of late but with guys like Kavanaugh ready and willing to continue his judicial activism, I don't hold high hopes for this court.
More bigger government is coming I'm afraid.
Um, it's routine for the US solicitor general (who reports to the AG, who reports to the president) to file what are called "Amicus curiae" briefs. That's Latin for, roughly, "friend of the court." The federal government isn't the only entity that can file these briefs. Lots of gun rights (and anti-gun groups) file such briefs. And they're common in other constitutional cases. In these briefs, the "friends of the court" can offer "advice" to the court about why the court should rule one way or the other.
They're useful and important because 1) sometimes the individual advocates arguing the case on behalf of the parties don't make all the best arguments available, but everyone has to live with the outcome of their case as precedent and 2) the filers are often able to contribute some broader context or expertise that's not already present in the briefing or record.
This is all normal.
McDonald v. Chicago crossed that bridge in 2010. The RKBA is "incorporated" into due process, just like the 1st amendment guarantees of free speech or the 4th amendment protection from unreasonable searches and seizures.
That's different than saying that the federal government has the right to regulate those things. Constitutional individual-right backstops are different than grants of federal authority.
Ivy Mike
Member
That doesn't negate the right of the states to set gun laws. Scalia said precisely that in Heller.
As long as that law doesn't violate the 2nd Amendment, it's valid. And before the Heller decision, more than a century of jurisprudence held that the 2nd only applied to the federal government and the constructionist idea that the right to keep and bear arms was of a military intent and tied to militia service.
-edit- To clarify, the 2nd Amendment was very limited in its scope and it was the states who protected gun rights of their citizens. We can see plenty of examples in state constitutions where gun rights are much more well-defined as belonging to individuals for legal purposes.
And McDonald, which came after Heller, said those laws have to be consistent with the 2nd amendment. The case in question challenges (rightfully, IMO) whether NYC's gun laws violate the 2nd amendment.
States have the right to make, for instance, defamation law. But that law is limited by the 1st amendment. For example, the https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan case was about whether Alabama libel law, which allowed a recovery for press coverage defamation of a public figure without a showing of malice on the part of the author/publisher, was consistent with the freedoms guaranteed by the 1st amendment. The Supreme Court found that it was not.
Thus, while states each have their own defamation laws and cases, they must all stop at the borders of the 1st amendment. The same is, and should be, true of other individual rights guaranteed by the federal constitution (after the 14th amendment's adoption).
Again, this is normal. This is not special to gun stuff.
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I am not a legal eagle or beagle, but I disagree that the states have the right to strictly limit a basic right to the point of its non-existence. Just as states were stopped from setting voting criteria aimed at racist goals, they should not be able to limit the RKBA in the manner I mentioned.
I disagree that Trump's administration cannot enter the fray. We elect our officials, in part for their views. If in a case before SCOTUS on a basic rights issue, be it guns, sexuality, voting or the like, I expect the elected administration to present a reasoned view of its position. I can disagree at the ballot box. The administration does not control the actions of the Justices, if that was implied.
The way I read the 2nd Amendemnt allows for people to bear arms and specifically allows for US citizens who could become militia members to bear the arms that would be associated with the ability to form a militia. If the people don’t have access to the appropriate arms the whole point of the 2nd Amendment is negated.
Does the fact that a militia hasn’t historically been used in the context that the founding fathers envisioned negate the place for militias now and forever going forward?
State constitutions have done a better job defining this concept because people who want to ban guns have tried twist the 2nd Admendment.
Also, the text is clear that the right is afforded to the people, not the militia.
And, as Eugene Volokh has demonstrated, the "unusual wording" of the 2nd amendment, with its self-justifying clause at the start, was once a common feature in constitutional drafting, and is not generally construed as having some limiting or conditionalizing effect on the mandatory directive that follows. http://www2.law.ucla.edu/volokh/common.htm
And, as Eugene Volokh has demonstrated, the "unusual wording" of the 2nd amendment, with its self-justifying clause at the start, was once a common feature in constitutional drafting, and is not generally construed as having some limiting or conditionalizing effect on the mandatory directive that follows. http://www2.law.ucla.edu/volokh/common.htm
The Supreme Court since Michigan v Long has treated the U.S. Constitution's Bill of Rights as a floor, not a ceiling. Thus, states like Missouri and Alabama are free to use strict scrutiny on state and local regulations affecting firearms due to their constitution. However, no state is allowed like DC (prior to Heller) and basically the City of Chicago (prior to MacDonald) did in regulating firearms to the point of a virtual ban. That also means when state and local governments like DC and Chicago tried to play it cute by setting all kinds of conditions that would accomplish the same thing (making firearm ownership next to impossible for those not connected politically), that such regulations violate the 2nd Amendment.
In the NY City case, New York City had very harsh regulations with criminal penalties attached to a New York city resident trying to travel with firearms. The court is addressing "Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel." https://www.scotusblog.com/case-fil...-association-inc-v-city-of-new-york-new-york/
BTW, I recommend folks go to that page and simply look at the number of amici briefs filed by states, non-profits, and so on. Some are from gun rights groups, some from professional associations of law enforcement, some from anti-gun groups, states, and so on. In important cases, the Supreme Court welcomes the participation of groups (although rarely allowing them to actually participate in oral arguments) by the submission of written briefs to make sure that A) points of law that both parties shortchange can be addressed and B) important policy implications of the decision are given to Supreme Court justices to consider when rendering a decision. It ain't just about the two parties if it creates binding precedent for the U.S. federal and state court systems.
In terms of travel, one of the issues is whether NYC's regulations violate FOPA via the dormant commerce clause. FOPA is a federal law and it is certainly appropriate for the federal government to weigh in when one of its laws are involved. A second is whether the right to travel is violated which is one of the few rights guaranteed from interference by states under the 14th Amendment's privileges and immunities clause. However, there is also strong indications that the privileges and immunities clause in the original U.S. Constitution applied to the states all along as it was in the original Articles of Confederation. To resolve all doubt, state power to interfere with the right of travel was explicitly limited by the 14th Amendment which btw due to its later inclusion in the Constitution limits the 10th Amendment's reservation of police powers.
The idea of a compact of states, for better or worse, that granted power to the federal government since the 13,14,15th amendments were passed, is constitutionally dead. That ship has sailed, the parrot is demised, deceased, is no more. States do not have the power to violate the U.S. Constitution nor to abridge its Bill of Rights protections as incorporated by the Supreme Court of the U.S. (see Cooper v. Aaron, 1958).
As to now, there is a serious split in the U.S. circuit courts of appeals regarding what level of scrutiny under the U.S. Bill of Rights applies to firearm ownership and carry of them. It is certainly a task for the U.S. executive to ask for clarification of whether FOPA is involved which regards congressional commerce clause powers, be involved in issues that affect travel among the states, and for clarification of the std. of review for 2A cases.
BTW, for those of you using states rights arguments--New York City is not a state but a subunit of New York state. It has no sovereignty under the Constitution except what New York State grants it for litigation purposes.
In the NY City case, New York City had very harsh regulations with criminal penalties attached to a New York city resident trying to travel with firearms. The court is addressing "Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel." https://www.scotusblog.com/case-fil...-association-inc-v-city-of-new-york-new-york/
BTW, I recommend folks go to that page and simply look at the number of amici briefs filed by states, non-profits, and so on. Some are from gun rights groups, some from professional associations of law enforcement, some from anti-gun groups, states, and so on. In important cases, the Supreme Court welcomes the participation of groups (although rarely allowing them to actually participate in oral arguments) by the submission of written briefs to make sure that A) points of law that both parties shortchange can be addressed and B) important policy implications of the decision are given to Supreme Court justices to consider when rendering a decision. It ain't just about the two parties if it creates binding precedent for the U.S. federal and state court systems.
In terms of travel, one of the issues is whether NYC's regulations violate FOPA via the dormant commerce clause. FOPA is a federal law and it is certainly appropriate for the federal government to weigh in when one of its laws are involved. A second is whether the right to travel is violated which is one of the few rights guaranteed from interference by states under the 14th Amendment's privileges and immunities clause. However, there is also strong indications that the privileges and immunities clause in the original U.S. Constitution applied to the states all along as it was in the original Articles of Confederation. To resolve all doubt, state power to interfere with the right of travel was explicitly limited by the 14th Amendment which btw due to its later inclusion in the Constitution limits the 10th Amendment's reservation of police powers.
The idea of a compact of states, for better or worse, that granted power to the federal government since the 13,14,15th amendments were passed, is constitutionally dead. That ship has sailed, the parrot is demised, deceased, is no more. States do not have the power to violate the U.S. Constitution nor to abridge its Bill of Rights protections as incorporated by the Supreme Court of the U.S. (see Cooper v. Aaron, 1958).
As to now, there is a serious split in the U.S. circuit courts of appeals regarding what level of scrutiny under the U.S. Bill of Rights applies to firearm ownership and carry of them. It is certainly a task for the U.S. executive to ask for clarification of whether FOPA is involved which regards congressional commerce clause powers, be involved in issues that affect travel among the states, and for clarification of the std. of review for 2A cases.
BTW, for those of you using states rights arguments--New York City is not a state but a subunit of New York state. It has no sovereignty under the Constitution except what New York State grants it for litigation purposes.
AlexanderA
Member
The Trump administration amicus brief is pretty much irrelevant. I think this is a slam-dunk case, and the NYC law will end up being overturned. The administration is trying to get partial credit.
The real question in the case is how broad the application will be. Will the Justices confine themselves to the narrow facts in NY, or will they enunciate some wider principles? The devil is going to be in the dicta.
The real question in the case is how broad the application will be. Will the Justices confine themselves to the narrow facts in NY, or will they enunciate some wider principles? The devil is going to be in the dicta.
AlexanderA
Member
No dichotomy there. According to contemporary commentary at the time the Amendment was adopted, the people are the militia. If the Amendment is seen in this light, the general public has a right to the standard weaponry (machine guns, etc.) that the armed forces use. The idea of militia universality, grafted on to the Miller case (1939), gives us that result. This should be the main thrust of 2nd Amendment interpretation, not the aberration that is Heller. Heller was just a political compromise among the Justices, and not a statement of originalist principle.
Well, a big chunk of the people were, anyway - free males 18-45. But even those members of the population who weren't in the militia - such as women - are part of "the people" and entitled to keep and bear arms.
AlexanderA
Member
The current legal definition of the militia, from 10 U.S.C. section 246(a), is as follows:
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
The definition in 1791 (actually,1792) was both broader, and narrower (for example, it didn't include slaves, free blacks, or any women). But the key difference was that, unlike today, it was meant to be universal. Basically, all the members of the community, physically capable of bearing arms (under the social strictures of the day), were supposed to show up for the militia musters, bearing their own arms.
I contend that the "constitutional militia" under the 2nd Amendment consists of the entire people, not just the segment defined by the Militia Acts. The writings of the Founders support this.
Hokie_PhD
Member
Wrong
Shall Not Be Infringed is clear.
I’m a citizen of the United States of America not of a particular state. I’m a resident of Virginia. When I leave Va and go to another state I’m still a citizen of the USA and I still have Constitutional rights. Currently Maryland and even our nations capital, Washington DC and many others deny me any means to exercise my 2nd Amendment right.
It’s one reason why I’m for conceal carry permits to be like drivers licenses. Good in all states. Now I know that’s not perfect. And 50 states plus DC and territory Constitutional Carry should be the law, I’d be happy with the former while we figure out how to get the later.
In any case states don’t have a right here and I’m someone that studies the tension and balance of states rights vs the power of the federal government.
I spend a lot of time in nyc. I have family there.
This law is terrible. You’re not allowed to transport your firearm to gun range outside city limits. Even unloaded in a case.
They also put massive bi-annual fees on the licenses to own (in your house) a pistol or rifle. To the point where most people can’t afford it, particularly people that live in rough parts of town.
So sure, pay your hundreds of dollars to get your gun and not be allowed to take it to a range and shoot it.
The laws in NYC are 100% designed to bypass the constitution and anyone that says otherwise is a liar or a fool. They are intended not to be “strict” regarding gun safety or crime, but to HARASS legal law abiding citizens so there will be NO guns in the hands of private citizens no matter your record.
Their goal is zero firearms for private citizens and there is no common sense to it. They realize that they aren’t allowed to do that that’s why they bother with death by red tape instead of direct bans.
Take heed. This is what the financial elites have in store for the rest of the country if they get their way.
This law is terrible. You’re not allowed to transport your firearm to gun range outside city limits. Even unloaded in a case.
They also put massive bi-annual fees on the licenses to own (in your house) a pistol or rifle. To the point where most people can’t afford it, particularly people that live in rough parts of town.
So sure, pay your hundreds of dollars to get your gun and not be allowed to take it to a range and shoot it.
The laws in NYC are 100% designed to bypass the constitution and anyone that says otherwise is a liar or a fool. They are intended not to be “strict” regarding gun safety or crime, but to HARASS legal law abiding citizens so there will be NO guns in the hands of private citizens no matter your record.
Their goal is zero firearms for private citizens and there is no common sense to it. They realize that they aren’t allowed to do that that’s why they bother with death by red tape instead of direct bans.
Take heed. This is what the financial elites have in store for the rest of the country if they get their way.
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“.....the right of the people to keep and bear arms shall not be infringed” - pretty clear to this people. History tells us that these strongly held types of issues are settled on battlefields - the legal word smiths are just a prelude - God save the Queen!
Politikal theatre but who is running this particular kabuki is the question. Now I do not know the underlying doctrine of the NYLawJ.com articles editors, but, most are liberal and anti-Trump. Others reporting same are Anti-T and...anti-2A
So it maybe, whereas the POTUS has done something very normal, as others have pointed out. But it is PRESENTED as, Trump trying to not whisper in the SCOTUS ear, but rather pinch & twist it.
Sidebar, the able bodied males thinking of the 1700s was in fact somewhere 17-45 years of age. Life was much harder back then, 17 very well could have been married with children already. Certainly more mature then today at 17! On the other end, 45 was getting up in years, as far as the average life span. In today's terms that would most likely be analogous to 20-65, just as a dollar back then would have a different worth today.
So it maybe, whereas the POTUS has done something very normal, as others have pointed out. But it is PRESENTED as, Trump trying to not whisper in the SCOTUS ear, but rather pinch & twist it.
Sidebar, the able bodied males thinking of the 1700s was in fact somewhere 17-45 years of age. Life was much harder back then, 17 very well could have been married with children already. Certainly more mature then today at 17! On the other end, 45 was getting up in years, as far as the average life span. In today's terms that would most likely be analogous to 20-65, just as a dollar back then would have a different worth today.
AlexanderA
Member
Yes, that was exactly my point. The militia in 1791 was much more "universal" than the militia as legally defined today.
jmorris
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This is the way I see it.
Some folks want States to be able to further restrict/eliminate abortions. Some States would like to do the same with firearms, despite their being a 2nd amendment.
I realized long ago that I am a libertarian vs an R or D though.
It isn't actually, because a federal law is involved (FOPA) and Congressional Commerce clause is involved (both FOPA and the dormant commerce clause.) A federal administration would be derelict if it did not take a court position on a case affecting federal law and constitutional powers.
NY City regardless of their elections has no more right to change the Constitution and its Bill of Rights than did Ole Miss in barring African American students in the 1960's. It is clear that the right to travel is a long vested right going back to the Magna Carta in the Anglosphere and in the U.S. is incorporated through the privileges and immunities clause. Which also btw, it in the Articles of Confederation, the Constitution, and the 14th Amendment. And, states rights would never apply to a city, no matter how big, it is not sovereign under the Constitution. It is a mere creature of NY State municipal law.
I would suggest that you read up on the case. Try the link at SCOTUS blog above which has a lot more than reported in the press about the case.
Tommygunn
Member
But if those local laws, passed "however ignorantly," are laws that violate the second amendment?
Having a high(er) court subject them to scrutiny, and overturning them (if proper) is hardly a "stretch philosophically."
It's what we have a legal system for!
You apparently did not actually go to read the briefs involved by the parties and the questions that the Supreme Court granted cert on. You will see issue 2 and 3 involve both of those.
The right to travel is so entrenched and historic, it is no longer an issue. FOPA itself is relatively ancient dated in 1986. Aside from the direct 2A question, the right of Congress to dictate travel conditions affecting civil rights dates from the case of Heart of Atlanta Motel v. U.S. and the reach of U.S. Civil Rights Act of 1964 via the Commerce clause. The Dormant Commerce clause cases derive from Gibbons v. Ogden (which also dealt with the right of Congress to dictates the terms of interstate travel) and later Cooley v. Board of Wardens. Both of these were settled before the Civil War. Even the Confederacy had a commerce clause analog in its Constitution which was designed to allow travel throughout the Confederate States without laws affecting it negatively. Grab yourself a constitutional text on the Powers of Government and read some of the excerpted cases.
There is a whole line of literature regarding amicus briefs--some are simply virtue signalling because they can be relatively cheap way to fundraise. Some private organizations do this because it is relatively simple to act in this way. Some are by affected professional organizations and states where laws might have to be changed in accordance with the decision.
However, those by the Solicitor General of the U.S. are taken much more seriously by the justices. In fact, the Solicitor General is often called the 10th Justice, (Justice Kagan is a former Solicitor General) for their effect on the court's agenda and decisions. It is a big deal and for example if Hillary was in the White House, you would be seeing a U.S. Solicitor General brief supporting the NY City law not to mention with a new Justice appointed by her filling Scalia's seat. Elections do have effects.
The right to travel is so entrenched and historic, it is no longer an issue. FOPA itself is relatively ancient dated in 1986. Aside from the direct 2A question, the right of Congress to dictate travel conditions affecting civil rights dates from the case of Heart of Atlanta Motel v. U.S. and the reach of U.S. Civil Rights Act of 1964 via the Commerce clause. The Dormant Commerce clause cases derive from Gibbons v. Ogden (which also dealt with the right of Congress to dictates the terms of interstate travel) and later Cooley v. Board of Wardens. Both of these were settled before the Civil War. Even the Confederacy had a commerce clause analog in its Constitution which was designed to allow travel throughout the Confederate States without laws affecting it negatively. Grab yourself a constitutional text on the Powers of Government and read some of the excerpted cases.
There is a whole line of literature regarding amicus briefs--some are simply virtue signalling because they can be relatively cheap way to fundraise. Some private organizations do this because it is relatively simple to act in this way. Some are by affected professional organizations and states where laws might have to be changed in accordance with the decision.
However, those by the Solicitor General of the U.S. are taken much more seriously by the justices. In fact, the Solicitor General is often called the 10th Justice, (Justice Kagan is a former Solicitor General) for their effect on the court's agenda and decisions. It is a big deal and for example if Hillary was in the White House, you would be seeing a U.S. Solicitor General brief supporting the NY City law not to mention with a new Justice appointed by her filling Scalia's seat. Elections do have effects.
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